FAQ

  • Wills and Probate

    • Can I draft my own Will?

      Yes, and the average person could repair their own car brakes, but many would be foolish to drive the car afterwards!

      A properly drawn, “simple” Will in Texas is very inexpensive, especially compared to the money you would otherwise spend if you don’t have one. In 2009, a properly drawn “simple” Will may cost around $800-$900. If prepared correctly, it will save you thousands of dollars (maybe tens of thousands) in attorney’s fees, surety bond premiums, and court costs.

      As long as the correct language from the Texas Probate Code is included, the executor of the estate can use a very simplified, inexpensive proceeding. However, missing that simple language could turn the probate into an expensive, tedious, time-consuming matter.

      Often, a layman drawing up a Will simply lacks the training to “dot all the i’s and cross all the t’s”. Spend a few dollars and get the job done right, and save thousands in the process.

    • Can I prepare a handwritten Will?

      Yes. Also known as a holographic Will, a handwritten Will is valid in Texas. If drawn properly, it does not require many of the formalities found in a normal Will in order to be honored by the probate court.

      Holographic Wills, though often better than nothing, are not recommended. A holographic Will cannot take advantage of the short cuts allowed by Texas law unless it includes the correct statutory language. Other drafting errors are also very common.

      Writer’s cramp is a hazard, too: The Will must be completely in your handwriting. You can’t simply type it up and sign it.

      Once again, though you can do one yourself, that does not mean you should. The small sum of money you save by not hiring a lawyer will frequently be spent many times over in the probate of the holographic Will. Texas allows a properly drawn Will to be probated much more inexpensively than one that fails to include the correct language. Very few laymen drawing a holographic Will know the proper language to include. Other drafting mistakes can also cause significant and needless additional expense.

    • Should I have a Living Trust to avoid the expense and inconvenience of probate?

      Probably not.

      Avoiding the expense and inconvenience of probate by having a Living Trust is kind of like avoiding the high cost of food by dying; while the treatment of the problem is effective, the cure is worse than the disease.

      In our opinion, Living Trusts are advisable only in very rare circumstances:

      • You have a lot of money and your estate planning lawyer is helping you legally minimize inheritance taxes;
      • You have a ‘Special Needs’ person you want to care for; or
      • You include a trust in your Will (Testamentary Trust) to allow your children to reach a specified age (for example—25) before they inherit your money.
    • Should I buy a Living Trust package that I heard about on T.V. or the radio?

      No.

      Usually, the advertiser’s pitch is deceptive. For example, they say, “Avoid the cost of probate,” but they don’t explain that the Living Trust costs the same amount as (or more) than the probate with a well drawn will.

      They say, “Avoid the inconvenience of probate,” but don’t explain that the work required to create a Living Trust (if done properly) is just as difficult. Worse, the Living Trust must be maintained—much like you’d have to maintain a garden—or you’ll end up with some assets “in” the Living Trust and some “outside” it. In that case, you’ll have to pay for both the Living Trust and a probate.

      Finally, because Living Trusts are pre-packaged, the people who own them often do not understand how they work. Are you really going to sit down and read those several hundred pages of documents? If so, will you truly understand what you read?

    • What is probate?

      Probate is the legal process of using the court to get property out of a deceased person’s name and into the name of the rightful heirs.

      Probate is generally a simple, relatively inexpensive process. A probate lawyer will do 80%- 90% of the work. There is nothing to be intimidated about.

    • Is probate ever a good thing?

      Absolutely.

      With a Will, probate is usually a very easy process. When probate is concluded, the proper heirs all have title to the property in their name and can treat it as their own.

      Additionally, one of the biggest freebies Uncle Sam gives us occurs in probate court. It’s called a “stepped up basis.”

      For example: In 1960 Mr. B buys a house for $30,000 dollars and when he dies the house is worth $130,000 with no debt. After the house goes through probate and his children sell it, they pay no income taxes on the $100,000 gain. If, however, Mr. B avoids probate by giving the house to his children before he dies, then they will all have to pay income taxes on the $100,000 gain.

    • Does everyone have to go through probate?

      No.

      Probate is only necessary when the deceased has property titled in his name that must be transferred to the heirs. For example, if someone died and only actually owned the furniture in the apartment that they rented, then probate would not be necessary or advisable. The items could simply be handed to the heirs and they would be free to use them.

      If, however, someone dies owning real estate, stocks, etc., then a transfer of the record title to that property must occur. Since the deceased is not present to sign anything, the probate court must step in. Unless the deceased held title to property in their name (car title, land, bank accounts with no beneficiary designation, recovery from a pending lawsuit, etc.), there may be no reason to file for probate.

      Even if you have property that you need to access, occasionally Texas allows short cuts that let you either avoid probate or go through a less expensive form of it.

      If, for example, someone dies who lives in a rental home, all of the deceased’s bank accounts allow another person to sign on them, there is no life insurance (or what there is has beneficiaries properly designated) and the only assets are some furniture and a car; then all of that can, usually, be resolved without having to go through probate.

      When in doubt, meet with a good lawyer, tell them your situation and follow their advice.

    • Do I need a Will? Why?

      If you don’t have a Will, Texas essentially writes one for you. Since the state’s version is ‘one size fits all,’ chances are you won’t like the way Texas divides your property, or the cost that goes along with it. The “Will” Texas writes for you does not use any of the legal “short cuts” available.

      When you draw up your own Will, you designate your heirs as the people who will inherit your belongings. You can include language from the Texas Probate Code in your Will that will save you and your heirs thousands of dollars and avoid many nights of lost sleep.

      Lawyers who bug you about having them prepare your Will are actually looking out for you and costing themselves a lot of money. When there is no will, a “dependant” probate will keep the lawyer employed for many months, possibly years, and generate a great deal of income for him.

    • If I don’t have a Will, will the State of Texas get my money?

      No, probably not.

      It is very rare for property to “escheat” to the State of Texas simply because you had no Will. The person who will end up with a big bunch of the deceased’s money will be the lawyer. His work is a lot more difficult, so his billing goes way up.

    • My spouse died years ago and I didn’t probate the estate. Is that bad?

      It could be.

      No one will knock on your door after your spouse or loved one dies and ask you, “When will you be filing for probate?” After a death, some people go into denial about the situation and never follow up with probate. This can create several problems. First, after four (4) years you may not be able to probate the Will or the estate. Second, heirs could die, and the complexity and cost to “clean up” the titles to land and property could skyrocket. Sometimes, an heir will also die, and leave small children as heirs. The latter requires you to open a guardianship for the children in addition to the probate ($$$$$). Finally, you may need to act quickly (e.g. the problem was discovered when the living spouse is trying to sell the house because they are in desperate need of funds) and the probate drags the process out for many months.

      Ideally, the process will be started within 60 days of the death. Waiting four or five months to begin is not a problem (unless there are other issues that surface—like not having access to funds solely in the deceased’s name).

      We have had cases where the living spouse never got around to probating the estate. Time passed and the heirs died, some with Wills and some without. When the heirs died, their children became the new beneficiaries. By the time the family came to us, the cost of the probate would exceed the value of the land. The more time that passed, the worse the problem got.

      The general rule is—beginning sooner is better than later.

    • Should I make my estate the beneficiary of my life insurance?

      Generally speaking, no.

      Life insurance passes outside the estate and is handed directly to the beneficiary. Since the lawyer is not involved in the process (or has very limited involvement), you will pay very little or nothing in attorney’s fees on the transition of those funds. If you put them into the estate, then the lawyer will have to take actions on those funds and you will incur those charges.

      Sometimes it makes sense to put the funds into the estate. For example, if you have a child under the age of 25 and you want the funds to go into a Testamentary Trust, then making the trust the beneficiary could make sense. As always, confer with a good lawyer before you make the decision to run life insurance proceeds thru your estate.

  • Criminal Law

    • Should I agree to a Breathalyzer Test?

      Only if you have had no alcohol or very, very low amounts of alcohol. Otherwise, refuse.

    • Do I have to submit to the "Tests" the Officer puts me through?

      (e.g. Tracking his pen with my eyes, standing on one foot, reciting the alphabet backwards, tipping my head back and telling him when 30 seconds has expired, etc.)?

      No. These tests are subjective and the accuracy can be affected by many variables that have nothing to do with alcohol. If you have been drinking, politely refuse to participate, politely explain that the tests are inaccurate and subjective, politely do not say any more than you must, and politely ask to speak to an attorney. Did I mention you should be polite?

    • What should I do if I am arrested?

      Again, politely ask to speak to an attorney. Do not answer any questions and do not consent to any searches without a search warrant. Do not discuss the facts with anyone but your attorney, especially anyone else in jail, or with anyone over the phone. Phone calls from jail may be monitored and/or recorded.

      Whey you are allowed to make a phone call, call a friend or a family member that can help you post bond, and hire a good lawyer. Hiring a good lawyer will increase your chances of receiving a more favorable outcome. If forced to make a decision between posting bond and hiring a lawyer, consider the long-term benefit of hiring a good lawyer.

    • Should I have a Court Appointed Attorney instead of hiring my own?

      If you are arrested, it is ALWAYS in your best interest to hire an attorney. Even if you do not think that you are guilty, and especially if you are, it is better to have someone with experience in criminal matters representing you and protecting your rights. Obviously, if you cannot afford an attorney, a Court Appointed Attorney is better than no attorney. But wouldn’t you rather hire an experienced attorney that will fight for your rights?

    • How do I get a Court Appointed Attorney on a criminal matter?

      The law requires a judge to let you know that you have the right to get a court-appointed attorney if you cannot afford to hire one, making the process fairly straightforward. You can generally only receive a court-appointed attorney if you’ve been charged with something that you may receive jail time for, though there are exceptions. Tell the judge during your initial hearing, often called the arraignment, that you want a court-appointed attorney. The judge will ask you to provide financial information under oath, often in writing and verbally. In general, if you can prove that you cannot afford an attorney, the judge will appoint an attorney for you.

  • Personal Injury

    • Can I handle my own car wreck claim? If you suffered a minor injury that quickly heals with little medical expense, then—yes. I

      If you suffered a minor injury that quickly heals with little medical expense, then—yes.

      If you have over $4,000 in medical costs and the injury has dragged on for months, then you should, at minimum, consult with a lawyer.

    • What is a frivolous lawsuit?

      One man defined it as, ”One brought by someone other than me.” In other words, too many lawsuits are branded “frivolous” just because people have a hard time empathizing with pain felt by others.

      The argument about “frivolous suits that are driving up insurance rates and destroying our country” is a scam perpetrated by large corporations and insurance companies. They are “poisoning the well” of future juries by issuing this propaganda.

      Under the current “anti-plaintiff” environment, frivolous defenses are far more frequent—and a much bigger problem for the system—than the danger of frivolous lawsuits.

    • Are injured Plaintiffs getting rich by filing lawsuits in Texas?

      No.

      Most large verdicts go to seriously injured people and the money is small compensation for their loss. Texas errs on the side of underpaying and under- appreciating the injured, not the opposite.

    • Are frivolous lawsuits driving up our insurance rates?

      No. Texas passed stringent tort reform several years ago. Injury lawsuits have fallen dramatically. Have your rates gone down? As with every state that has passed tort reform, the only visible effect (other than many suffering, uncompensated families) was that the insurance companies made a lot more money.

    • My property was damaged in a hurricane, can I handle the loss myself?

      If your damage was small, then—yes.

      If you incurred substantial damage and you are satisfied with the amount you are being offered, again—yes.

      If you have experienced a large loss and you feel that the insurance carrier is not treating you fairly, then you really need to get an attorney. Adjusters are professionals. They are far more adept and have a lot more resources than you do. No matter how nice your particular adjuster may be, he or she must operate under insurance company guidelines that are designed to keep you from getting everything you are entitled to receive.

      Examples:

      • Some adjusters will open multiple claims under a single loss and tell you that you have “several deductibles”;
      • Adjusters will offer you fifty cents or sixty cents on the dollar and tell you that it’s the repair value of your damaged property even though your contractor is charging you almost twice the amount;
      • Adjusters will “lose” your file and say you gave them no documents;
      • Just when you think you are getting somewhere with an adjuster, the insurance company will assign a new one and you’ll have to start all over; and
      • The insurance company will refuse to pay all the money they owe you but will hold it back for “depreciation”.

      Even if you are one of those rare, extremely methodical individuals, it will be very difficult for you to get the best recovery from your insurance company. They know that you, without legal representation, are no threat. They are not going to pay you top dollar.

    • Are insurance companies and large corporations evil?

      It’s tempting to think so, isn’t it? But no, not at all. They can be the source of a lot of good.

      The problem with insurance companies and large corporations is that they are not living beings, theoretically live forever, and have great power and no conscience. They judge their success by how much money they make. That is, for the most part, a corporation’s only measure of achievement.

      Corporations and insurance companies respect only money. It is the only way to communicate with them. Tort reform and the election of anti-plaintiff judges have cut off the court system to the injured and the oppressed.

      This type of power, unfettered as it now is—thank you tort reform—leads to great injustices. “Power corrupts. Absolute power corrupts absolutely”—Lord Acton.

      Over a hundred years ago a judge explained how money (in the form of punitive damages) leveled the playing field and made life better for us all:

      Under the cover of a corporate name and authority, there is in fact as much wickedness and as much that is deserving of punishment as can be found…anywhere else. Because these ideal existences can neither be hung, nor put in prison, nor placed in chains the doctrine of exemplary damages is, in fact, more beneficial than in it’s application to ordinary people.

      There is but one vulnerable point in a corporation and that is the pocket of moneyed power that is concealed behind it. If that is reached, they will wince.

      When it is thoroughly understood that it is not profitable to employ reckless, indifferent agents, nor careless insolvent servants; then better men will take their place—but not before.

    • What is PIP?

      A standard automobile policy is really several different policies. PIP stands for Personal Injury Protection. It is an agreement with your insurance company that, if you are in a car wreck and are injured, they will pay up to (usually) $2,500 or $5,000 of either your medical expenses or 80% of your lost wages.

      Upon proof that you incurred the medical bill or lost the income, this money is supposed to be paid with essentially no questions asked. It does not need to be repaid to the insurance company even if you recover it from the person who injured you.

    • What is Uninsured or Underinsured Motorists Coverage?

      These are parts of a standard “full coverage” insurance policy. If the person who hits you has no insurance, then your “Uninsured” policy will pay for your injury up to the amount of your policy. For example, if you have a minimum limits policy (you shouldn’t—we’ll talk about that later) then you may be able to recover $20,000 or more from your own carrier (if your injury merits that amount).

      If the party that injures you has too little insurance to pay the full amount of your damages, then you can claim through your “Underinsured policy” for the remainder of your loss up to the policy limits. For example, if you suffered a $50,000 injury and the person that hit you only had $25,000 policy limits, then you could claim the remaining $25,000 against your policy (providing that your limits are that high).

    • I am short on money. Should I get low policy limits (or liability insurance only) to keep my insurance premium low?

      No.

      Always buy full coverage. Why pay to protect the other guy and leave you and your family to the wolves?

      Get $50,000 per person limits or, if possible, $100,000 per person. If you are fairly sound financially, get the highest limits you can. You will be surprised how cheap the higher limits are.

      If you skimp anywhere on automobile insurance, do it by raising your deductible. The first layers of insurance are always the most expensive. The higher limits are rarely used and, therefore, relatively cheap.

      Following this strategy pretty much guarantees that you will cuss us every time you get in an accident and have to reach in your pocket for a $1,000 or so to fix your vehicle (or drive it with that dent). On the other hand, you’ll love us if you ever get in a severe accident because some drunken idiot with no insurance (or $25,000 limits) incapacitates you for several weeks or months, or longer.

      If you have to save money, decide to accept the small pain in order to be safe from the life-altering consequences of drastic injury.

    • My car is old and, paid off. Should I carry only liability insurance?

      No. As explained previously, your automobile policy has many other policies rolled together. The “liability policy” is only one of them and is not the most important. Your liability policy protects the other guy. You want to protect yourself and your family.

      Never go on the road without full coverage for the highest limits you can afford.

    • Can I sue my insurance company for “bad faith”?

      Texas allows policyholders to sue when an insurance carrier indulges in behavior that shows “a lack of good faith and fair dealing.” The penalties can be severe. However, after tort reform and with our current appellate judiciary in place, successful verdicts are almost nonexistent.

      Absent exceptional circumstances, including this claim in your suit against an insurance company is counterproductive. It delays your suit and adds little to your recovery.

  • General Law

    • How do I know if I need to hire a lawyer versus just handling things myself?

      Hiring a lawyer is a business decision. Compare how much will you spend to what will you receive if successful. Remember, there’s always a chance you’ll be unsuccessful, so incorporate a risk factor into your decision. We recommend that you have an “upside” or “downside” of three to four times your projected attorney’s fees before you choose to hire a lawyer.

      If you don’t have a reasonable chance of recovering several times more than your attorney will cost you, either:

      • Let it go;
      • Do it yourself; or
      • Retain a lawyer on a “flat fee” basis, and get the fee agreement in writing.

      Many legal matters (wills, probate, divorce, handling your own medium-to-large insurance claims) are beyond what the average person can handle or wants to take on. When possible, hire a lawyer instead of doing it yourself.

      If you must to go to court (i.e. you have been sued or the loss is too big to ignore), then hiring a lawyer is almost always the right answer. Going to court without a lawyer puts you at extreme risk. Simply not knowing the rules can result in losing, or worse yet, a judgment against you.

      To get started, set a brief meeting with a good lawyer. Tell him or her your situation. He’ll tell you whether or not you need him. After you’ve heard his opinion, leave his office, mull over what you’ve heard, and if you feel he’s correct, pay him to represent you. With a good lawyer, the money you save should far outweigh the money you pay in attorney’s fees.

    • When should I fire my lawyer?

      Ask yourself the following questions: Are you fighting your lawyer as hard as you’re fighting the other side? Do you call repeatedly, knowing your lawyer probably won’t return your call? When your attorney tells you that he or she is going to do something, are chances good that it won’t get done? Do you feel just as confused and clueless after you speak with your lawyer as you did before you called?

      Are hearings and depositions set up for weeks, but you find out only a couple of days before you’re due in court? Is your “file” a bunch of papers crammed into a manila folder in no discernable order? Are lots of things going on in your case over weeks and months but you only find out about them by accident long after they’ve occurred?

      These are all signs it may be time for a change of counsel. At minimum, you should seek a second opinion.

    • My first lawyer is not doing a good job but I don’t want to spend money for a new lawyer—what should I do?

      Spend the money for competent counsel. A lawyer who is not doing his job will cost you far more than the new lawyer.

    • How do I choose a good lawyer?

      Talk to friends and family who have experienced similar problems. Look for someone who regularly practices in the county where your case will be.

      Meet with several attorneys. Tell each what is going on—then ask questions. Trust your instinct. If it doesn’t feel right, don’t hire him.

      A good lawyer should meet the following criteria:

      • Can answer your questions;
      • Gives you answers that you can understand;
      • Has answers that make sense;
      • Tells you his retainer amount up front;
      • Is not afraid to charge a high enough retainer to do the job right;
      • Has sufficient staff to keep your case moving forward;
      • Answers your phone calls (personally or through his staff) reasonably promptly;
      • Sends you copies of everything he does or that he receives;
      • Routinely sends you itemized bills that clearly reflect his work (unless he’s working on a contingency basis); and
      • Is completely upfront about what’s going on with your case, and isn’t afraid to tell you the bad news along with the good
    • Can I make the other side pay my attorney’s fees?

      Maybe.

      In Texas, there must be a specific statute allowing you to recover attorney’s fees for the type of case you have. Examples of when you can recover are: breach of contract cases, family law cases, and deceptive trade practice cases involving consumers. Examples of when you generally cannot recover fees are: negligence cases, car wrecks, and personal injury claims.

      Additionally, remember that being entitled to sue for attorney’s fees and actually recovering attorney’s fees are two different things. The whole issue is often an emotional one for both sides. It is very difficult to get the other side to agree to pay your fees voluntarily. Often the only method of recovery is going to trial and having the court order them to do so—which requires incurring more attorney’s fees and carries the risk of an adverse verdict. At trial, the court has the discretion of awarding all, part, or none of the attorney’s fees you incurred.

  • Family Law

    • Can dads get custody?

      Absolutely.

      While it’s tougher for dads to win custody, it is possible. We’ve represented many dads with great success. What’s critical is that you work with a lawyer who has extensive daddy custody experience. It’s been our experience that dads really need to pick their battles. Custody fights are very expensive and time consuming. You want to be sure you have a high probability of success before you fire the first shot. We can help you assess your chances.

    • When should I fight for custody?

      When there is a significant difference in the quality of the parents, and the better parent has a more than 50% chance for success, a custody battle is likely the smartest option. When you are the better parent, simply going along to get along—and giving up custody to buy peace—usually doesn’t work to anybody’s satisfaction.

      Here’s how the scenario often plays out: You give up what probably would have turned out to be a successful opportunity, your kids suffer, you realize your mistake, and a year or two later you spend twice as much money (with a lower likelihood of success) trying to correct the situation.

    • Do moms have an “edge” in custody battles?

      Yes. All things being equal…things are not equal.

      Even though the Texas Family Code states that the choice of parent must be made without regard for gender, remember—people are people. Our attorneys have spoken with many jurors, and a very high percentage of them still feel that “babies should be with mama.”

      That said, there are a lot of other factors that need to be considered to determine if indeed “things are equal.” We’ve won custody for many dads who didn’t realize they had significant advantages over the mother for a custody battle. Their children are with them now, and are much better for it.

      Call and then meet with a lawyer. Lay out some of the facts. You may have a much better chance of gaining custody than you think.

    • Can a dad avoid child support by going after custody?

      Yes. You can also avoid income taxes by stepping in front of a bus, but we don’t recommend it.

      The cost of raising a child in your household is usually far more than the child support you’ll be ordered to pay if you don’t have custody. Children ‘eat’ money. Unless you truly want to make all the sacrifices it takes to have that child in your home, pay the support.

      If money is your main criteria, paying child support is the cheaper way to go by far.

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